DENISE JULIEN, Applicant – v. –, 2016 NBQB 107

IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Neutral Citation Number: 2016 NBQB 107 File: FDM-703-2010 BETWEEN: DENISE JULIEN, Applicant – and – PIERRE JULIEN Respondent DECISION BEFORE: Madam Justice Colette d’Entremont AT: Moncton, New Brunswick DATES of hearing: May 13, 2016 DATE of decision: June 3, 2016 APPEARANCES: Lucie A. Leclerc, for the Applicant Pierre S. Soucy, for the Respondent

D’ENTREMONT, J. INTRODUCTION [ 1 ] The Applicant, Denise Julien filed a Notice of Application on February 5, 2015 requesting that the Respondent, Pierre Julien transfer an RRSP in her favour in accordance with the parties’ Separation Agreement dated June 17, 2009. Alternatively, she is requesting that the Court direct the Clerk of the Court to sign the transfer documents. [ 2 ] On the other hand, Mr. Julien argues that Ms. Julien’s claim is statute-barred by the operation of the two year limitation period. [ 3 ] The parties rely on the Limitation of Actions Act , 2009 SNB, c.

L-8.5. [ 4 ] The proceedings leading to the issuance of this decision were conducted in both official languages. Ms. Julien proceeded in the English language and Mr. Julien proceeded in the French language. The decision should be in both official languages. To prepare the decision in both languages would cause a delay therefore the decision is prepared in the English language and at the earliest possible time, shall be translated in the French language. FACTS [ 5 ] The parties were married on June 22, 1985 and separated on February 6, 2009. They entered into a Separation Agreement on June 17, 2009.

They were divorced on December 5, 2010. [ 6 ] The rights of the parties regarding the division of property and debts were dealt with in the Separation Agreement. [ 7 ] The relevant portion of this Agreement include the following: 7. REGISTERED RETIREMENT SAVINGS PLAN & OTHER INVESTMENTS

a) The Husband and Wife agree that the Wife currently has in her name R.R.S.P.s in the amount of $5,184.00 and, the Husband currently has in his name R.R.S.P.s in the amount of $32,692.00. Immediately upon the execution of the within Agreement, the Husband will transfer/roll over $13,754.00 from his Registered Retirement Savings Plan into the Wife's Registered Retirement Savings Plan in her sole name to be hers solely and absolutely. [ 8 ] In April 2012, the parties’ investment advisor, Michel LeBlanc, who was with Investia Financial Services Inc. advised Ms. Julien that Mr.

Julien had removed most funds from the RRSP account of $32,692 and transferred these to his account with the Royal Bank. As well, Mr. LeBlanc informed her that the RRSP had never been transferred to Ms. Julien according to the Separation Agreement. Before this conversation with Mr. LeBlanc, Ms. Julien was under the belief that one-half of the amount, that is $13,754, in RRSP had been transferred to her. [ 9 ] The Investment Statement provided by Mr. LeBlanc indicates that on April 14, 2009, Mr. Julien’s RRSP had a total market value of $32,692.36. On May 10, 2012, the value of the account was $4,422.92.

[ 10 ] Once Ms. Julien learned from Mr. LeBlanc that Mr. Julien had not transferred the RRSP, she contacted a lawyer. [ 11 ] Ms. Julien’s lawyer sent eight letters to Mr. Julien requesting that he transfer the RRSP in the amount of $13,754 to Ms. Julien. These letters are dated from October 26, 2012 to June 17, 2014. On the other hand, Mr. Julien put these letters in the waste paper basket thinking all the marital property had been divided. [ 12 ] As Mr. Julien did not make arrangements to transfer the funds, the within Notice of Application was filed on February 5, 2015. [ 13 ] Mr.

Julien is of the view that the transfer of RRSP did not occur as Ms. Julien failed to provide personal information to the financial planner. Ms. Julien stated she was not aware that she had to provide any information to the financial planner. [ 14 ] As well, when Ms. Julien filed for the divorce in 2010, she swore a supporting affidavit containing a clause saying that she was not claiming a division of property and that no application could be made under the Marital Property Act , 2012 SNB, c.107, later than 60 days after the divorce took effect. [ 15 ] When the divorce proceedings were served on Mr.

Julien, he was under the belief that Ms. Julien was not claiming anything from him. Therefore, he did not contest the divorce. The Divorce Judgment was granted on December 5, 2010. [ 16 ] Mr. Julien argues that Ms. Julien waited five years to file the within Application and that her claim is statute-barred. Also, Mr. Julien is not sure what the value of the RRSP is today, as he states the stock market has gone up and down in the past few years. In the event that he is not successful, Mr. Julien outlines that if he has to transfer the RRSP to Ms.

Julien, this transfer will be subject to income taxes as the parties are no longer married. [ 17 ] The parties agree that this Application relates to enforcement of a Separation Agreement and not a request to divide marital property and marital debts. ISSUE [ 18 ] The issue in this matter is whether the limitation period has expired in relation to Ms. Julien’s claim that her share of the RRSP be transferred to her pursuant to the Separation Agreement. LAW [ 19 ] Mr.

Julien’s argument is based on the premise that the limitation period relating to the claim has expired. [ 20 ] He relies on section 5(1) of the present Limitation of Actions Act , 2009 SNB, c. L-8.5, which came into force on May 1, 2010. [ 21 ]

Section 5 of the Act reads as follows: GENERAL LIMITATION PERIODS General limitation periods 5(1) Unless otherwise provided in this Act, no claim shall be brought after the earlier of (

a) two years from the day on which the claim is discovered, and

(

b) fifteen years from the day on which the act or omission on which the claim is based occurred. 5(2) A claim is discovered on the day on which the claimant first knew or ought reasonably to have known (

a) that the injury, loss or damage had occurred, (

b) that the injury, loss or damage was caused by or contributed to by

an act or omission, and (

c) that the act or omission was that of the defendant. [ 22 ] Sections 27, 27.1 and 27.2 of the new Limitation of Actions Act relate to transition. They read as follows: TRANSITION Transition 27(1) The following

definitions apply in this

section and sections 27.1 and 27.2. “effective date” means the day on which this Act comes into force.(date d’entrée en vigueur) “former limitation period” , with respect to a claim, means the limitation period that applied to the claim before the effective date.(ancien délai de prescription) “new limitation period” , with respect to a claim, means the limitation period established by this Act that applies to the claim. (nouveau délai de prescription) 27(2) This

section applies to claims that are based on acts or omissions that took place before the effective date. 27(3) During the first 2 years after the effective date, a claim may be brought after the new limitation period has expired if the former limitation period has not expired. Transition – debts due to the Crown

27.1 Despite anything else in this Act, if the limitation period that applies to a claim by the Crown for the recovery of moneyowing to it would, if not for this section, expire after the commencement of this

section but before May 1, 2016, that limitationperiod expires on May 1, 2016. 2011, c.52, s.2. Expiry of former limitation period 27.2 Nothing in this Act permits a claim to be brought if the former limitation period has expired before the effective date. [23] The Limitation of Actions Act came into force on May 1, 2010. If Ms. Julien’s claim was subject to a limitation period, whichhad already started to run under the former legislation but not expired, then by May 1, 2012, her claim had to be filed. Mr.

Julien arguesthat on the day the Separation Agreement was signed, that is June 18, 2009, the limitation period commenced. In which case, by May 1,2012, the applicable limitation period ran out. Alternatively, he argues that in April of 2012, Ms. Julien knew the RRSP had not beentransferred. In such a scenario, the limitation period ran out in April of 2014, that is about nine months before the within Notice ofapplication was filed. [24] Regarding the discoverability principle governing the commencement of a limitation period, the following passages found inTender Choice Foods Inc. v.

Versacold Logistics Canada Inc., 2013 ONSC 80 are worthy of mention: 52 The discoverability principle governs the commencement of a limitation period and stipulates that a limitation periodbegins to run only after the plaintiff has the knowledge, or the means of acquiring the knowledge, of the existence of the facts thatwould support a claim for relief: Kamloops v. Nielson (1984), (SCC), 10 DLR (4th) 641 (S.C.C.); Central Trust Co.v. Rafuse, (SCC), [1986] 2 S.C.R. 147; Peixeiro v.

Haberman, (SCC), [1997] 3 S.C.R. 549. 53 The date upon which the plaintiff can be said to be in receipt of sufficient information to cause the limitation period tocommence will depend on the circumstances of each particular case: Ferrara v.Lorenzetti, Wolfe Barristers and Solicitors, 2012ONCA 851 at para. 71 (C.A.); Kenderry-Esprit (Receiver of) v.

Burgess, MacDonald, Martin and Younger (2001), (ON SC), 53 O.R. (3d) 208 (S.C.J.) at para. 19. 54 With respect to the basic limitation period of two years under the Limitations Act, 2002, a claim is "discovered" on theearlier of the date the claimant knew -- a subjective criterion -- or ought to have known -- an objective criterion -- about the claim.The discoverability principle conforms with the idea of a cause of action being the fact or facts which give a person a right tojudicial redress or relief against another: Lawless v. Anderson, 2011 ONCA 102 (C.A.) at para. 22; Aguonie v.

Galion Solid WasteMaterial Inc. (1998), (ON CA), 38 O.R. (3d) 161 (C.A.) at p. 170. 55 The plaintiff is required to act with due diligence in acquiring facts in order to be fully apprised of the material facts uponwhich a claim can be based: McSween v. Louis, (ON CA), [2000] O.J. No. 2076 (C.A.) at para. 46; Soperv. Southcott (1998), (ON CA), 39 O.R. (3d) 737 (C.A.) at p. 744. [25] I am of the view that in April of 2012, when Mr. LeBlanc informed Ms. Julien that the RRSP in the amount of $13,754 had notbeen transferred to her by Mr.

Julien, the claim was discovered within the meaning of subsection 5(2) of the Limitation of Actions Act. Consequently, under subsection 5(1) of the Act, no claim could be brought after two years from the day on which the claim wasdiscovered, that is the end of April 2014. The within Notice of Application was filed February 5, 2015 and is statute-barred by theoperation of the two year limitation period. [26] As Mr. Julien has been successful in this matter, he is entitled to a costs award of $1,500 inclusive of taxes and disbursements. DISPOSITION [27] The order of the Court is as follows:

a) Ms. Julien’s claim is dismissed as it is statute-barred by the operation of the two year limitation period.

b) Ms. Julien is ordered to pay costs of $1,500 in favour of Mr. Julien. DATED at Moncton, New Brunswick this 3 rd day of June, 2016. ___________________________________ Colette d’Entremont Justice of the Court of Queen’s Bench New Brunswick, Family Division